The EAT has held, in DCSF v Fletcher, that a legal obligation limiting employment to 9 years is not - without more - enough to amount to 'justification' under the Fixed Term Employees (Prevention of Less Favourable) Treatment Regulations 2002.
The Department for Children, Schools and Families employs teachers who teach at various European Schools. Under EU secondary legislation dating back to 1994, agreed by 27 other member states, their period at the school is limited to nine years.
A teacher, Mr Fletcher, said that the 9-year rule offended the Fixed Term Employee Regulations. The EAT, HHJ McMullen QC presiding, agreed. The EAT stated that the:
- the 1999 EU Fixed Term Employee Directive impliedly repeals an earlier (1994) piece of legislation, insofar as the earlier legislation is incompatible
- if the underlying rule (9 years maximum) is not itself objectively justified, the fact it has been agreed by 27 Member States cannot - without more - justify it
This is quite a difficult issue, and permission has been given to appeal to the Court of Appeal.